DMA Objects to FTC Primary-Purpose Guideline for Billing Messages

The Direct Marketing Association said yesterday it opposes the Federal Trade Commission's proposed treatment of some billing and other transactional e-mail messages under the CAN-SPAM Act.

The FTC plans to publish a Federal Register notice today with three definitions of what qualifies as a commercial e-mail for enforcement under the federal anti-spam law.

The DMA opposes the FTC's proposed rule that would treat transactional e-mails, like billing invoices and order confirmations, as commercial messages if the recipient regards the content as commercial based on the subject line or if the transactional information does not appear near the top of the message.

"We think when you look at transactional mail, whether regular mail or e-mail, if it's transactional that's the reason why you're receiving it," said Jerry Cerasale, the DMA's senior vice president of government affairs. "We think that's the primary purpose."

Cerasale compared the situation to consumers receiving utility bills that also include ads.

Transactional e-mail messages are exempted from some CAN-SPAM requirements, such as the inclusion of a physical address and an unsubscribe function.

"You don't want someone to be able to say 'no' to receiving a bill from a transaction," Cerasale said.

The DMA does not object to the FTC's other two criteria for determining what qualifies as a commercial e-mail. The commission proposes e-mail whose content is advertisements be labeled commercial. It also proposes that the commercial e-mail label apply to messages with advertising and other content if a recipient would reasonably believe the message's purpose is to advertise a product or service.